MISS AGNES SITHOLE v CITY & HACKNEY COMMUNITY SERVICES NHS TRUST MS KATHRYN DOWNTON [2000] UKEAT 0248_00_1506

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 0248_00_1506

Case No Appeal No. EAT/0248/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS AGNES SITHOLEAPPELLANT

CITY & HACKNEY COMMUNITY SERVICES NHS TRUST MS KATHRYN DOWNTONRESPONDENT

Before

Mr Recorder Langstaff

Date 15 June 2000

This is a preliminary hearing in an appeal by Miss Sithole against the City & Hackney Community Services NHS Trust and Ms Kathryn Downton which was heard at the Stratford Employment Tribunal for 4 days in November 1999. On 22 December 1999 the Tribunal, which Mrs Enid Prevezer had chaired, promulgated its decision. There were 3 matters of dispute: -

One was a claim in respect of unfair dismissal

The second were claims in respect of discrimination, on the one hand sex, on the other race and

The third was an argument upon jurisdiction as to whether or not the Tribunal should entertain evidence leading to a finding of culpability, in respect of acts, which had taken place some time previously.

The Tribunal for reasons which it explains on page 63, paragraph 8 came to its decision without having had the benefit of written submissions from Mr B Takavarasha who represented Miss Sithole. That is no criticism in the circumstances of the Employment Tribunal. However it did mean that there was in at least one respect an error which we think deserves some further examination and may well have some critical impact, as we shall explain.

The facts found by the Employment Tribunal were essentially these: -

Mrs Sithole was a registered nurse. In July 1993 she became a Team Leader at the Malpas Road Community Home which was run by the 1 st Respondent. A little while after that a Mr Ababio became her immediate manager. She and he did not get on. She complained from an early stage about Mr Ababio. It may be that his management style was tighter and more directive than previous managers had been, but in any event in a letter of 1 October 1997 she made various allegations against him. In July 1998 she received a warning in respect of her conduct, essentially a question of time keeping. On 14 August 1998 she complained that she was suffering from harassment by him and that this was caused by her race, at least in part. This was the first complaint, as we understand it of discrimination on the grounds of race against her. On 2 December 1998 a date which had some significance and we shall come back to, she was subjected to a disciplinary hearing. This was essentially in respect of an allegation that she had engaged in what is called 'back to back working.'

The allegations that she faced are set out at paragraph 25 of the Employment Tribunal's extended reasons. There are 5. The first 3 are allegations that she worked a 'back to back shift.' Those allegations related to April, that is very nearly 8 months earlier. She had had no intimation at the time that there was any investigation into the possibility that she might be working 'back to back' nor (from looking at the documents we have) was it made clear to her that 'back to back' working was necessarily such an offence as to lead, inevitably, to a finding of gross misconduct. She said in respect of those allegations that she had on one occasion worked a 'back to back shift' but had had a break in between. In respect of the second allegation she accepted that she had worked a 'back to back shift.' As to the third she said she had had a significant break in between the 2 shifts which she had worked on that day. There were two further allegations each claiming that she had defrauded her employer when claiming that she worked unsociable hours, by claiming an overlap of ¼ hour in one case and a ¼ hour in a second case, between one shift for which she was paid by the Trust and another for which she was paid by a private agency.

The significance of the date of 2 December 1998 is two fold. First it is the very date that an application by Ms Sithole was received in the Stratford Employment Tribunal. It had been written by her on 29 November 1998 and one of the mistakes to which I have referred in the extended reasons is what is contained in paragraph 1, where the date is misquoted as having been 8 December. What may be of importance (how much will be for others to judge) is that the claim in respect of racial and sexual discrimination appears to have preceded the dismissal hearing, rather than come after it. And it appears to us at least a coincidence. We might wish to know more as to why it should be that there was that coincidence of date and whether, as it happens, there is any proper inference to be drawn about what might have been in the mind of the employers when they conducted the disciplinary hearing on that particular date.

The Appellant was dismissed and the reason that she was dismissed as found by the Employment Tribunal is set out at paragraph 34:

34. "The disciplinary procedures of the Trust set out matters which could lead to summary dismissal and one of them is negligent behaviour which seriously threatens the health and safety of the patients, employees or members of the public."

We have not in this preliminary hearing seen the document itself which sets out a list of those matters which may amount to summary dismissal, as being gross misconduct. From that description, we infer for present purposes that there was no specific reference within that list to 'back to back working.' What would have to be shown to come within paragraph 34 would be that the 'back to back working' was careless, negligent and that it had had an effect of actually or potentially threatening in a serious way, the health and safety of patients, employees or members of the public. We are unclear as to whether the Employment Tribunal examined whether the particular incidents that gave rise to the disciplinary hearings some 8 months later, had in fact had any adverse effect on the health safety of patients, or whether when they occurred they had that potential, as opposed to taking a general and global approach which would simply be to the effect that any 'back to back working' must carry a risk and that any risk to a patients' health is inevitably serious.

I interpose in the chronology something which happened in July 1993. Then in her contract of employment a term was imposed which read as follows (as set out at paragraph 10 of the Employment Tribunal decision):

10. "Activities undertaken by nursing staff resulting in 'back to back' shift working, i.e. night/early or late night (unless at the specific individual's request of a manager) is unacceptable professionally and will result in disciplinary action being taken…"

This appears to indicate that 'back to back' shift working is not necessarily such a serious risk to the health of a patient that the employer cannot contemplate it. The words in brackets show that permission may be given for it to occur. We would find it an astonishing concept if conduct which was always and inevitably to be regarded as carrying a serious risk to patients, could on any occasion be condoned by an employer. The fact that such a practice was capable of being authorised may be some indication as to its relative importance. Mr Takavarasha in the course of submissions which he made with care and economy before us, for which we are grateful, drew attention to the fact that earlier in the 1990's a Mr Gopaul had, as the Employment Tribunal acknowledged, not been sacked for what on the face of it appeared to be rather more extensive, proved instances of 'back to back' working. That serves merely to underline the potential point that may be available to the Appellant that 'back to back' working is not always and inevitably so serious as to demand one particular form of disciplinary action.

We return then to what took place after the disciplinary hearing had been conducted. The Appellant was summarily sacked, subject only to appeal. The burden of the charges against her appears to have been that in respect of 'back to back' working. The Employment Tribunal do not appear to have placed any particular weight on the instances of fraud, if such they were. It may be that that is just a reflection of the minor amount of time and possible argument in respect of it. The offence appears perhaps more to be the Appellant failing to seek permission to take time off in lieu of unsociable hours, than actually claiming those hours. Be that as it may, we turn to what it is the Employment Tribunal said about the claim in respect of unfair dismissal. They recite the test at s.98 (4) of the Employment Relations Act and give their reasons in a terse but informative paragraph:

64. "Having considered all the evidence and found the facts as set out above, this Tribunal considers that the Respondents acted reasonably in all the circumstances in treating the conduct of the Applicant as sufficient to dismiss the Applicant. This was a reasonable decision in all the circumstances bearing in mind that the Applicant was a senior nurse looking after vulnerable residents in a home and their care was of primary importance to the Respondents, bearing in mind that a senior nurse cannot be supervised at all times."

Those words are plainly a reference to the proven allegation of 'back to back' working. They depend for their force upon a proper appreciation of the significance within the Respondents' organisation of 'back to back' working and an examination of the contractual terms and disciplinary code, to which we have drawn attention. We can see that it is arguable that the Employment Tribunal may not have paid those aspects sufficient consideration to justify the conclusion which they reached. We do not say those facts necessarily falsify that conclusion, we say merely that the point appears to us upon the information we presently have as being properly arguable.

So far as the complaint of discrimination on the grounds of sex is concerned this related to Mr Ababio. The complaint was that she, the Appellant, had suffered less favourable treatment in response to complaints about her safety, compared to the way in which a Mr Gopal had had complaints about his safety dealt with. The law is set out by the Employment Tribunal and in particular at paragraph 54. It seems to us that for the reasons, which the Employment Tribunal gives, there is no arguable claim of direct discrimination. So far as the allegations of discrimination on the ground of race are concerned, this related to a comparison of the Appellant with a Miss Kushinga (who was white) who was, so the Employment Tribunal found:

"Appointed without interview, given a bleep when the Appellant was denied one, who did not have to clock in and out as the Appellant had and who was given advancement within the employment of the Respondents, in a way which the Appellant was denied."

Mr Takavarasha said that those were merely sample matters but there was more by way of comparison, which showed that the Appellant had been less favourably treated. The conclusion which the Tribunal came to in dealing with the allegations of discrimination was to reject those matters, as more favourable treatment, accepting as they did an alternative explanation for most of them. They were not satisfied, they said, on the evidence that the Appellant had discharged the burden which rests upon her of proving discrimination on the grounds of race and we do not think that she has, on the basis of the facts found by the Employment Tribunal, any arguable case so far as direct discrimination is concerned.

However, there is also a claim of victimisation. It seems to us again that it may well be that there is an unfortunate coincidence in time between the beginning of a claim to the Employment Tribunal by Mrs Sithole in respect of racial and sexual discrimination against her and the disciplinary hearing which she faced on 2 December 1998. The cynic might suggest that where one has a range of options by way of disciplinary penalty to impose for an offence which does not necessarily command the penalty of dismissal, the recent happening of such an event may have an influence in selecting one penalty rather than another. It may be that the Employment Tribunal did not fully have its mind directed to that possibility, when it rejected the claim for victimisation.

It is apparent, therefore, that we think that there is no arguable basis for any appeal, apart from:

An appeal based upon the finding against the Appellant that she had been fairly dismissed. The basis for that appeal being, as we have indicated, the question of whether or not the penalty imposed was one which, given the circumstances and background was appropriate;

And closely allied with that, whether there may or may not have been some evidence of victimisation, by reason of a heavier rather than lighter penalty being selected, which at least the Employment Tribunal should have explored. We are conscious that we may in the absence of submissions from the Respondent be reading more into extended reasons than is justified. None the less we feel some unease about the extended reasons given by the Stratford Employment Tribunal and think it proper that a full hearing should be held to explore those two issues only.

Mr Takavarasha, when we first came into the hearing this morning we wanted to hear what you had to say but such was the amount of detail you had given us in your submissions and Notice of Appeal, we might very well have failed to identify the points which we have done. It is very important for Mrs Sitholes's case, if it is to stand any prospect of success to have a focus. What I am going to direct is that there be an amended Notice of Appeal, that it should be no more than two pages in length in total and within those two pages, deal with:

First of all, the unfair dismissal argument as we have identified it, we hope helpfully to you, and

The victimisation argument. As we have indicated the two perhaps are related.

We see no reason why the whole appeal, both what you have to say and what Miss Bevitt or whoever appears for the Respondent has to say, should take any more than one day, that would give you about ½ a day and no more for your submissions. So you would need to tailor them to meet the grounds of appeal and that, I think would be most helpful to the Tribunal. Any skeleton argument needs to be focused upon the points that really matter. It should be given to this Tribunal at least 2 weeks before the hearing and please do not assume that, if it is not in by then that there will be any indulgence. If you have any copies of cases on which you would wish to rely, can you make sure that they are with the Tribunal at least 7 days before the hearing and that direction applies to the Respondent, any cases which they wish the Tribunal to consider, they must copy to Mr Takavarasha, and submit to this Tribunal at least 7 days before the hearing. The category is category B for listing purposes.

The originating application named two Respondents. We see no arguable basis for pursing any appeal against the second Respondent. As against her, this appeal is not to proceed to a full hearing and stands dismissed.